Citation Nr: 1104888
Decision Date: 02/07/11 Archive Date: 02/14/11
DOCKET NO. 09-32 479 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg,
Florida
THE ISSUES
1. Entitlement to service connection for residuals associated
with a posttraumatic subarachnoid hemorrhage (claimed as a
traumatic brain injury).
2. Entitlement to service connection for radiculopathy of
sciatica of the right lower extremity (RLE) (claimed as
peripheral neuropathy of the RLE).
REPRESENTATION
Appellant represented by: Florida Department of Veterans
Affairs
ATTORNEY FOR THE BOARD
K. A. Kennerly, Counsel
INTRODUCTION
The appellant served on active duty from February 1980 to
December 1982.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a May 2008 rating decision of the St. Petersburg,
Florida, Regional Office (RO) of the Department of Veterans
Affairs (VA), which denied the benefits sought on appeal. The
appellant submitted a Notice of Disagreement with this
determination in July 2008, and timely perfected his appeal in
September 2009.
The Board additionally observes that all appropriate due process
concerns have been satisfied. See 38 C.F.R. § 3.103 (2010). The
appellant has been accorded the opportunity to present evidence
and argument in support of the claims. In his September 2009
Substantive Appeal [VA Form 9] he declined the option of
testifying at a personal hearing.
FINDINGS OF FACT
1. The preponderance of the evidence is against a finding that
the appellant currently suffers from residuals associated with a
posttraumatic subarachnoid hemorrhage that are the result of a
disease or injury incurred in active duty service.
2. The preponderance of the evidence is against a finding that
the appellant currently suffers from radiculopathy or sciatica of
the RLE that is the result of a disease or injury incurred in
active duty service.
CONCLUSIONS OF LAW
1. Residuals associated with a subarachnoid hemorrhage were not
incurred in or aggravated by active duty service. 38 U.S.C.A. §§
1111, 1131, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010).
2. Radiculopathy or sciatica of the RLE was not incurred in or
aggravated by active duty service. 38 U.S.C.A. §§ 1111, 1131,
1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board has thoroughly reviewed all the evidence in the
appellant's claims file. Although the Board has an obligation to
provide reasons and bases supporting this decision, there is no
need to discuss, in detail, the evidence submitted by the
appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378,
1380-81 (Fed. Cir. 2000) (the Board must review the entire
record, but does not have to discuss each piece of evidence).
The analysis below focuses on the most salient and relevant
evidence and on what this evidence shows, or fails to show, on
the claims. The appellant must not assume that the Board has
overlooked pieces of evidence that are not explicitly discussed
herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the
law requires only that the Board address its reasons for
rejecting evidence favorable to the appellant).
The Board must assess the credibility and weight of all evidence,
including the medical evidence, to determine its probative value,
accounting for evidence, which it finds to be persuasive or
unpersuasive, and providing reasons for rejecting any evidence
favorable to the appellant. Equal weight is not accorded to each
piece of evidence contained in the record; every item of evidence
does not have the same probative value. When all the evidence is
assembled, VA is responsible for determining whether the evidence
supports the claim or is in relative equipoise, with the
appellant prevailing in either event, or whether a preponderance
of the evidence is against a claim, in which case, the claim is
denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
I. The Veterans Claims Assistance Act of 2000 (VCAA)
With respect to the appellant's claims decided herein, VA has met
all statutory and regulatory notice and duty to assist
provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326 (2010).
Under the VCAA, when VA receives a complete or substantially
complete application for benefits, it is required to notify the
claimant and his representative, if any, of any information and
medical or lay evidence that is necessary to substantiate the
claims. See 38 U.S.C.A. § 5103(a) (West 2002);
38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App.
183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21
(2004) (Pelegrini II), the United States Court of Appeals for
Veterans Claims (Court) held that VA must inform the claimant of
any information and evidence not of record (1) that is necessary
to substantiate the claims; (2) that VA will seek to provide; and
(3) that the claimant is expected to provide.
Prior to initial adjudication of the appellant's claim, a letter
dated in February 2008 fully satisfied the duty to notify
provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. §
3.159(b)(1) (2010); Quartuccio, at 187. The February 2008 notice
letter also provided the appellant with notice of how VA
determines the appropriate disability rating or effective date to
be assigned when a claim is granted, consistent with the holding
in Dingess/Hartman v. Nicholson. See Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006).
All the law requires is that the duty to notify is satisfied and
that claimants are given the opportunity to submit information
and evidence in support of their claims. Once this has been
accomplished, all due process concerns have been satisfied. See
Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet.
App. 553 (1996); see also 38 C.F.R. § 20.1102 (2010) (harmless
error). In view of the foregoing, the Board finds that the
appellant was notified and aware of the evidence needed to
substantiate his claims, as well as the avenues through which he
might obtain such evidence, and of the allocation of
responsibilities between himself and VA in obtaining such
evidence. Accordingly, there is no further duty to notify.
The Board also concludes VA's duty to assist has been satisfied.
The appellant's service treatment records and VA medical records
are in the file. The appellant has at no time referenced
outstanding records that he wanted VA to obtain or that he felt
were relevant to the claims. In fact, the appellant specifically
indicated that he had no further evidence to submit in support of
his claims. See Appellant's Statement, February 21, 2008.
The duty to assist also includes providing a medical examination
or obtaining a medical opinion when such is necessary to make a
decision on a claim, as defined by law. The record indicates
that the appellant participated in a VA examination in April 2008
and the results from that examination have been included in the
claims file for review. The examination involved a review of the
claims file, a thorough examination of the appellant, and an
opinion that was supported by sufficient rationale. Therefore,
the Board finds that the examination is adequate for rating
purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007)
(affirming that a medical opinion is adequate if it provides
sufficient detail so that the Board can perform a fully informed
evaluation of the claim). Given the foregoing, the Board finds
that the VA has substantially complied with the duty to obtain
the requisite medical information necessary to make a decision on
the appellant's claims.
As there is no indication that any failure on the part of VA to
provide additional notice or assistance reasonably affects the
outcome of this case, the Board finds that any such failure is
harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir.
2007). Importantly, the Board notes that the appellant is
represented in this appeal. See Overton v. Nicholson, 20 Vet.
App. 427, 438 (2006). The appellant has submitted argument and
evidence in support of the appeal. Based on the foregoing, the
Board finds that the appellant has had a meaningful opportunity
to participate in the adjudication of his claims such that the
essential fairness of the adjudication is not affected.
II. The Merits of the Claims
The appellant contends that he currently suffers from residuals
of a subarachnoid hemorrhage as well as radiculopathy or sciatica
of the RLE as a result of an injury in active duty service.
Specifically, the appellant claims that in July 1982, he was in
an altercation with a German police officer, at which time he
fell and struck his head on a sidewalk, resulting in his current
disabilities.
Governing Law and Regulations
Service connection may be established for a disability resulting
from disease or injury incurred in or aggravated by active
service. See 38 U.S.C.A. § 1131 (West 2002). For the showing of
chronic disease in service there is required a combination of
manifestations sufficient to identify the disease entity, and
sufficient observation to establish chronicity at the time. See
38 C.F.R. § 3.303(b) (2010). If chronicity in service is not
established, a showing of continuity of symptoms after discharge
is required to support the claim. Id. Service connection may be
granted for any disease diagnosed after discharge, when all of
the evidence establishes that the disease was incurred in
service. See 38 C.F.R. § 3.303(d) (2010).
In order to establish service connection for the claimed
disorder, there must be (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease or
injury; and (3) a causal connection between the claimed in-
service disease or injury and the current disability. See
Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden
v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).
In essence, lay testimony is competent when it regards the
readily observable features or symptoms of injury or illness and
"may provide sufficient support for a claim of service
connection." See Layno v. Brown, 6 Vet. App. 465, 469 (1994).
See also 38 C.F.R. § 3.159(a)(2) (2010). In this regard, the
Court has emphasized that, when a condition may be diagnosed by
its unique and readily identifiable features, the presence of the
disorder is not a determination "medical in nature" and is
capable of lay observation. In such cases, the Board is within
its province to weigh that testimony and to make a credibility
determination as to whether that evidence supports a finding of
service incurrence and continuity of symptomatology sufficient to
establish service connection. See Barr v. Nicholson, 21 Vet.
App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir.
2009).
Medical evidence is generally required to establish a medical
diagnosis or to address questions of medical causation; lay
assertions of medical status do not constitute competent medical
evidence for these purposes. See Espiritu v. Derwinski, 2 Vet.
App. 492, 494 (1992). However, as noted above, lay statements
may serve to support a claim for service connection by supporting
the occurrence of lay-observable events or the presence of
disability or symptoms of disability subject to lay observation.
See 38 C.F.R. § 3.303(a) (2010); Jandreau v. Nicholson, 492 F.3d
1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331,
1336 (Fed. Cir. 2006) (addressing lay evidence as potentially
competent to support presence of disability even where not
corroborated by contemporaneous medical evidence).
Analysis
Despite the appellant's claims that he currently suffers from
residuals of his established in-service subarachnoid hemorrhage
and radiculopathy or sciatica of the RLE, review of the claims
file is completely negative for current diagnoses of these
disabilities. During his April 2008 VA brain and spinal cord
examination, radiographic images of the appellant's lumbar spine
revealed: facet degenerative changes at L4-5 on the right;
unremarkable sacroiliac joints; punctuate calcific densities
overlying the pelvis; and mild to moderate disc space narrowing
present at L4-5 and L5-S1. Radiographic imagines of the skull
did not reveal any evidence of a displaced skull fracture. The
appellant was diagnosed as status post traumatic subarachnoid
hemorrhage with no residuals, acute lumbar strain and right
sciatica in service, which resolved without residuals, congenital
lumbar scoliosis, degenerative disc disease, degenerative joint
disease, and no objective findings of radiculopathy. The VA
examiner noted that meningeal irritation symptoms (headache, back
and leg pain) resolved with the resolution of the appellant's
subarachnoid hemorrhage. Neurological squelae were not an
expected outcome and the service treatment records did not reveal
such squelae. It was also noted that any current lumbosacral
spine condition was less likely than not caused by or related to
the simple myofascial pain/strain and sciatica that was noted
during service. See VA Examination Report, April 23, 2008.
To the extent that the appellant argues that he suffers from head
or RLE pain, the Board notes that pain alone, without a diagnosed
or identifiable underlying malady or condition, does not in and
of itself constitute a disability for which service connection
may be granted. See Sanchez- Benitez v. West, 13 Vet. App. 282
(1999), appeal dismissed in part, and vacated and remanded in
part sub nom. See Sanchez-Benitez v. Principi, 259 F.3d 1356
(Fed. Cir. 2001).
While the appellant is certainly competent to report his head and
RLE pain, the aforementioned conditions are not generally
considered lay observable and thus, the appellant's statements
that his current pain is related to an injury in service are not
considered credible. See Barr, supra; see also Davidson, supra.
Further, there is no medical evidence of record to substantiate
the appellant's claims that he currently suffers from these
conditions.
In order to be considered for service connection, a claimant must
first have a disability. See Rabideau v. Derwinski, 2 Vet. App.
141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998)
(service connection may not be granted unless a current
disability exists). See also Degmetich v. Brown, 104 F.3d 1328
(Fed. Cir. 1997). Here, the appellant has failed to establish
element (1) under Hickson, current disabilities.
Accordingly, the Board concludes that the preponderance of the
evidence is against the claims for service connection, and the
benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is
not for application. In this case, for the reasons and bases
discussed above, a reasonable doubt does not exist regarding the
appellant's claims. There is not an approximate balance of
evidence.
ORDER
Entitlement to service connection for residuals associated with a
posttraumatic subarachnoid hemorrhage is denied.
Entitlement to service connection for radiculopathy of sciatica
of the right lower extremity is denied.
____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs